Parental Rights

Between tantrums and teenagers, it’s sometimes hard for parents to feel like they have control over anything their child does. However, while there’s only so much you can do to change the tides of an adolescent mood swing, in the legal sphere, your role as your child’s protector and provider actually comes with a lot of rights. 

These powers are called “parental rights,” and they are inherent to the job title, which means that even if you get a divorce, your right to have a relationship with your child won’t expire.

Here’s what you need to know about parental rights in California, and how Maples Family Law can help make sure yours are protected. 


What Are Parental Rights?

First off, let’s define exactly what we’re talking about, here. 

In California, parental rights refer to the various powers and responsibilities that parents have to care for, and make decisions on behalf of their child. 

This authority is inherent to your role as a parent, meaning it can’t be taken away from you, except by court order (which generally only happens under extreme circumstances, such as neglect, abuse, or family violence). 

While married, neither spouse needs the permission of the other to exercise their parental authority. Instead, the court presumes that the decisions of one parent speaks for the mind of both, and that they are united in the direction of care for their child. Once you get divorce, however, all that changes. 


What Happens to Parental Rights During Divorce?

Unlike marital rights, parental powers are not severed by divorce—after all, you don’t stop being a parent, just because you’re no longer a spouse. (The same logic applies to unmarried parents, whose parental authority isn’t invalidated by the fact that they aren’t married.) 

That being said, just because these powers don’t disappear, doesn’t mean they’ll operate the same way on the other side of divorce. 

When you file for divorce, that’s a pretty clear indication that you and your spouse are no longer on the same mental wavelength. And since the court can no longer assume that the decisions of one represents the mind of both, they’ll need to set parameters on how parental authority is used, and where your child will spend their time. In layman’s terms, we’re talking about a “custody battle.”

In a custody dispute, the court assigns parental rights by breaking them into two main categories: legal and physical. Each can then be distributed either to one spouse, individually (in “sole custody”), or to both, as a shared responsibility (“joint custody”). 

Whether your child came to you biologically, or through adoption, these custody distinctions—as well as the various laws governing parental rights—remain the same. 

Parental Rights and Adoption

Unlike a guardianship, adoption is permanent, and has far-reaching effects. This legal action completely alters a child’s family tree, reaching both forward and backwards through time, shifting the lines of inheritance to adopted parents, and requiring the child to have a new birth certificate. 

In other words, once adoption is complete, it’s as though—for all intents and legal purposes—the child’s adopted parents were its only parents.

This means that adopted parents enjoy the same rights as their biological counterparts—in the eyes of the law, there is no difference. Once finalized, adopted parents may claim the full mantle of parental rights and responsibilities.


Parental Rights for Unmarried Parents

When a child is born into a marriage, California courts presume that the baby is the biological offspring of the mother and father in that marriage. A baby’s parentage can also be assumed if the parents have been living together, but aren’t married. 

What happens, though, if the parents aren’t married, or if the baby is fathered by a man who isn’t the mother’s husband? 

Technically, parental powers should apply, regardless of your marital status. However, because they aren’t married, California’s presumption of parenthood can’t be applied the same way, and this can cause some unique hurdles—particularly for unwed fathers.


How the Court Views Unwed Mothers

Once her child is born, an unwed mother automatically assumes parental power. 

This is because, well, let’s be real, here: birth is a pretty hard thing to fake. It’s not something that leaves a lot of doubt on who the biological parent is, and hence, this half of the parental rights duo is easy to legally assign.

Unless someone is challenging her ability to care for the child, an unwed mother receives full custodial power and parental authority upon the birth of her child—no legal hoops necessary.


How the Court Views Unwed Fathers

Due to nature’s biological constraints, it’s a lot harder to verify an unwed father’s claims to parenthood than a mother’s. That’s why in California, unwed fathers are not automatically given parental rights when a child is born.  

According to California family law, unwed fathers are not considered a child’s legal parent until they establish paternity—regardless of whether or not they are in a relationship with the child’s mother, or even if they are listed on the child’s birth certificate. 

Unless the father has actually been living with the mother for a significant amount of time prior to the child’s birth, he must establish paternity before he can assume parental authority. Until he does so, he will not be able to make decisions on behalf of the child, or have any right to custody, including visitation. 


Establishing Paternity

There are two ways for an unwed father to establish paternity

  1. To have both mother and father sign a “Voluntary Declaration of Paternity” form; or, 
  2. Pursue a paternity action in court. 

Naturally, the most headache-free option of these two, is to simply sign and submit the paternity form. 

However, if the mother refuses to acknowledge paternity—or, conversely, if a father, himself, refuses to take responsibility for his child’s welfare—then either father or mother will need to file an action in court, before rights and responsibilities can either be claimed or assigned.  

A court paternity action can be filed by any of the following: 

  • The child’s mother; 
  • Any man claiming to be the father; 
  • Any man that could possibly be the father; 
  • A child support agency; or, 
  • An adoption agency.

Usually when a paternity case is brought before the court, a judge will require both the baby and its potential father to submit material for genetic testing. These tests are much less invasive, once a baby is born, which is why courts almost never require in utero genetic tests.  

Once the baby’s parentage has been established, the court will then assign each parent their various rights and responsibilities, including child support, custody, visitation, and health insurance. 

If the male in question refuses to cooperate with genetic tests, the court is permitted to take this as evidence that he is the father, and may assign him parental responsibilities, anyway. 


Same Sex Parental Rights

Over recent decades, California has set itself apart as being one of the most progressive states, in terms of protecting the rights of same sex couples, spouses, and parents. 

Because of these efforts, same sex parents in California now enjoy the same parental rights as those of a hetero couple, with other anti-discrimination laws in place to protect them from unfair prejudice in court. California has even enacted legislation that allows more than two parents to retain parental rights, which can help a same sex parent retain custody, upon divorce.

Even still, same sex couples continue to face discrimination when it comes to child custody. Hence, the best way to ensure that both have indisputable custodial rights over their child, is for each to simply adopt, right from the onset.

If you have more concerns about how parental rights apply to same sex custody situations, it’s best to speak to a family law attorney about your unique situation. 


Parental Rights Attorneys in California

At Maples, we know that nothing is more important to you than your child. You care about their emotional and physical wellbeing, and worry that you won’t be able to see them, after your divorce. As parents, ourselves, we understand these concerns, which is why we hope you’ll trust us to help protect this precious relationship. 

If you have more questions about parental rights in California, and how divorce might affect your family dynamics, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help protect the best interest of your child.